Garcia, Lorenzo v. State ( 2004 )

Becker v. State

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

LORENZO GARCIA, Appellant, V. THE STATE OF TEXAS, Appellee.

§ § § § § §

No. 08-02-00085-CR Appeal from the 210th District Court   of El Paso County, Texas (TC# 2001-0D0-1248)

  M E M O R A N D U M O P I N I O N  

Lorenzo Garcia appeals his conviction of capital murder. A jury found Appellant guilty, and the trial court automatically set punishment at life imprisonment as the State did not seek the death penalty. See Tex. Code Crim. Proc. Ann. art. 37.071, § 1 (Vernon Supp. 2004). We affirm the judgment of the trial court.

I. FACTUAL SUMMARY

On the morning of January 13, 2001, sixteeen-month-old Andrian Ramirez was left with Appellant, the mother's boyfriend, while she went to work. Appellant and Ramirez's mother lived together in an apartment. When Ramirez's mother left him that morning, he had been eating well, playing with toys, and had no fever, but he had experienced some diarrhea over the last couple of days.

At around noon on this same date, Rebecca Vasquez was asleep in an adjacent apartment when she was awakened by a baby crying in Appellant's apartment. She heard a man making a sound like a person who was making a physical effort and something heavy banging on the wall. Vasquez then heard something "really heavy" fall in the shower. She heard the baby crying again but it stopped. Vasquez went back to sleep.

At approximately 1:30 p.m., emergency personnel were dispatched to Appellant's apartment. The officers who arrived first found Appellant with Ramirez in the bathroom attempting to perform CPR. Ramirez was naked on the bathroom floor, had no pulse and was not breathing. Officers noticed bruising on his body, including his pelvis and upper arms. Appellant told the paramedics that he was in the process of giving Ramirez a bath when he suddenly stopped breathing. Appellant said that he left Ramirez in the shower for a few minutes while he went into the other room. When he heard Ramirez stop singing and talking, he went back into the bathroom to check on him and found Ramirez doubled over in a pool of his own vomit. The officers noticed that Ramirez was dry and did not have any vomit on him. However, a child's shirt on the bathroom floor appeared to have vomit on it. When asked about the bruising, Appellant told EMS personnel that Ramirez was learning to walk and often fell down. EMS was successful in restarting Ramirez's heart and transported him to William Beaumont Army Medical Hospital, the nearest medical facility. During transport, EMS personnel noticed that the bruises on Ramirez's body became more pronounced and additional bruises appeared. Ramirez arrived at the hospital in a deep coma and showed little evidence of brain activity. He was pronounced dead the following day, January 14, 2001. Dr. Corrine Stern, Chief Medical Examiner for El Paso County, performed an autopsy and determined the cause of death to be blunt-force injuries to Ramirez's head. A grand jury indicted Appellant for the capital murder of Ramirez. The indictment alleged that Appellant intentionally and knowingly caused the child's death by striking Ramirez's head with an object unknown to the grand jury or by striking his head against an unknown object. The jury found Appellant guilty of capital murder as alleged in the indictment.

II. DISCUSSION  

In Issue Number One, Appellant contends that the evidence is factually insufficient to prove two elements of capital murder: (1) that the striking of Ramirez's head with or against an object was the cause of his death; and (2) that Appellant acted intentionally or knowingly.

A. Standard of Review

When conducting a factual sufficiency review, we consider all of the evidence, both admissible and inadmissible, but we do not view it in the light most favorable to the verdict. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Levario v. State, 964 S.W.2d 290, 295 (Tex. App.--El Paso 1997, no pet.). We review the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it with the evidence that tends to disprove that fact. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 832, 118 S. Ct. 100, 139 L. Ed. 2d 54 (1997). A defendant challenging the factual sufficiency of the evidence may allege that the evidence is so weak as to be clearly wrong and manifestly unjust, or in a case where the defendant has offered contrary evidence, he may argue that the finding of guilt is against the great weight and preponderance of the evidence. See Johnson, 23 S.W.3d at 11. Although we are authorized to set aside the fact finder's determination under either of these two circumstances, our review must employ appropriate deference and should not intrude upon the fact finder's role as the sole judge of the weight and credibility given to any evidence presented at trial. See Johnson, 23 S.W.3d at 7. We are not free to reweigh the evidence and set aside a verdict merely because we feel that a different result is more reasonable. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997); Clewis, 922 S.W.2d at 135.

B. Cause of Death

With respect to the cause of death, Appellant argues that because only one medical expert, Dr. Stern, concluded that Ramirez died of blunt-force trauma to the head and her opinion is not supported by objective medical data, the evidence is factually insufficient. We disagree. Dr. Tyler James treated Ramirez in the emergency room. Ramirez was unresponsive to all stimuli and was in shock. His body temperature was well below normal. They provided IV fluids and warmed Ramirez's body as supportive measures and in an effort to make him responsive. Dr. James observed multiple bruises to the forehead, arms and buttocks, and a large bruise to the abdominal wall. Given these injuries, Dr. James suspected the child had received multiple blows from a blunt object. His differential diagnoses included sepsis, non-accidental trauma (intentional assault), subarachnoid hemorrhage (bleeding into the brain), epidural hemorrhage (bleeding into the brain), subdural hemorrhage (bleeding into the brain), intra-abdominal trauma, sepsis, overdose, hypothermia, electrolyte disturbance, and seizures. Dr. James explained the concept of differential diagnosis for the jury as follows: when a patient, such as Ramirez, is totally unresponsive, a physician considers all of the possible causes for the patient's condition. During the subsequent evaluation, the physician either rules in or rules out the differential diagnoses. Based on testing performed that day, Dr. James ruled out sepsis, anemia, platelet dysfunction, and leukemia. Additionally, there was no evidence of seizure disorder. Clotting tests (PT, PTT, and APPT) were abnormally high, indicating to Dr. James that Ramirez was in shock due to an injury which had caused excessive bleeding. Ramirez's hypothermia indicated to Dr. James that the child had been exposed to excessive cold or his body's normal mechanism for warming itself was not functioning properly. A chest X-ray revealed that Ramirez had a pulmonary contusion of the right upper lobe and left lower lobe of his lungs. A CT scan of the head showed bleeding in the left frontal area of the brain, while a CT scan of the abdomen ruled out internal bleeding in the abdomen. The CT scan also showed a blunting of the gray white interface of the brain. In a normal CT scan of the brain, the structures of the brain are very well demarcated and there is a clear line where the gray and white matters converge. With significant swelling of the brain, however, the lines are no longer sharp. During the course of treatment and as circulating blood volume was restored, the bruising on Ramirez's body became more prominent. The bruising to the forehead and the results of the CT scan caused Dr. James to suspect that Ramirez had been beaten. Ramirez was admitted to the Intensive Care Unit and a pediatric consult was obtained. The pediatric consult report listed nine diagnoses: (1) anoxic brain injury (lack of oxygen to brain) with front frontal bleed; (2) a coded diagnosis unknown to Dr. James; (3) cardiac arrest; (4) multiple bruises; (5) multiple contusions; (6) blunt chest trauma; (7) hypothermia; (8) pulmonary contusions; and (9) child physical abuse. In Dr. James' opinion, no medical condition or disease process accounted for Ramirez's condition and injuries. His injuries were not consistent with having been self-inflicted, spontaneous, or the result of a clumsy child falling down, nor were they consistent with Appellant's statement that Ramirez had been fine one moment and unconscious the next.

Dr. Teras Masnyk, M.D., the Chief of the Neurosurgery Service at William Beaumont, saw and treated Ramirez shortly after his admittance to ICU. He noted that Ramirez was in a deep coma, unresponsive to any stimulus, and showed little evidence of brain activity. Dr. Masnyk explained that Ramirez's hypothermia may have been caused by the lack of brain activity. Dr. Masnyk observed numerous bruises on different parts of Ramirez's body. Photographs taken of Ramirez in ICU and admitted at trial depict these bruises. Ramirez had an anoxic brain injury which occurs when the brain does not receive enough blood flow or oxygen to maintain its activity and keep itself alive. There can be different causes of an anoxic brain injury such as cardiac arrest, strangulation, or suffocation which interrupts the flow of blood to the brain. Trauma can also lead to anoxic brain injury if it causes sufficient intercranial pressure. Dr. Masnyk noted that swelling of the brain tissue was not apparent on the CT scan. In Dr. Masnyk's expert opinion, the bruising seen on Ramirez could not be explained by a clumsy child falling down or otherwise self-inflicted. While there are conditions which can lead to spontaneous bruising, such as platelet dysfunction, those conditions were not found in Ramirez.

Dr. Scott Coleman, Ramirez's pediatrician, had seen the child from the time he was a few days old until he was nine months old. Ramirez did not have any overt signs of a blood disorder during the time Dr. Coleman treated him. Dr. Coleman, who is familiar with the types of injuries suffered by toddlers who are learning to walk, reviewed the photographs depicting the bruises on Ramirez's body. In his expert opinion, the bruising was not consistent with the type of bruises or injuries found on a child who is learning to walk. Additionally, Dr. Coleman testified that there is no medical condition which would account for the injuries on Ramirez's body.

The medical examiner, Dr. Stern, described the injuries she found during the autopsy of Ramirez. She found three separate bruises on the buttocks, multiple bruises on the bottom of the right foot, a large contusion to the right elbow, two bruises on the inside of the right arm, six bruises on the abdomen, a bruise below the knee, a bruise on the upper left cheek and one on the left side of the head, a bruise on the mid-anterior scalp, and another on top of the nose. Her testimony is supported by photographs of these injuries. Dr. Stern also found internal injuries. Ramirez had hemorrhage in the mesentery (the attachment which holds the small and large intestines down) caused by blunt-force trauma. This injury corresponded to the bruising on the abdomen. Dr. Stern also found five separate subgaleal hemorrhages from five separate impact sites on the inside of the scalp. Four of the hemorrhages were on the front of the head and a large or diffuse hemorrhage which covered the back of the head. These hemorrhages, which matched the external bruises observed on the head, were caused by blunt-force trauma, namely, his head being struck by a hard object or by his head striking against a hard object. The large injury to the back of the head was consistent with Ramirez's head being struck against a hard surface. When Dr. Stern removed the cranial vault, she found 75 milliliters of liquid blood located in the area between the dura and the brain. Subdural hemorrhage is associated with the tearing of the bridging veins that hold the dura close to the brain. This type of injury is commonly caused by blunt force trauma. Even 50 milliliters of blood in the subdural space is enough to cause loss of consciousness and even death. With this type of brain injury, a child would become unconscious within an hour. She explained that subarachnoid and subdural hemorrhages are difficult to detect by CT Scan and MRI, and consequently, clinicians often do not pick them up. Dr. Stern did not find any evidence of any disease process in Ramirez that contributed to his death. In Dr. Stern's opinion, Ramirez died of blunt force injuries to the head caused by his head striking a hard surface or a hard object striking his head.

Dr. James Algeo, Jr., a diagnostic radiologist and former Chief of Radiology at William Beaumont, testified on behalf of the defense. Dr. Algeo reviewed the various imaging studies performed on Ramirez, the lab reports, and Dr. Stern's autopsy report. Dr. Algeo did not see any evidence on the imaging studies of brain edema or subarachnoid, epidural, or subdural hemorrhage and he concluded that Ramirez did not die as the result of blunt force trauma. Dr. Algeo conceded on cross-examination that trauma to the brain is not always evident on MRI or CT scan and that subdural hemorrhage can be missed. Ultimately, Dr. Algeo stated that he did not disagree with Dr. Stern's findings. Dr. Randy Goldstein, a resident who practices emergency medicine in El Paso, also testified on behalf of Appellant. Dr. Goldstein is board certified in pediatrics but he had not completed his residence in emergency medicine at the time of trial. He reviewed the autopsy report, ambulance records, emergency room records and in-patient records from William Beaumont related to Ramirez. Dr. Goldstein found it unlikely that Ramirez died as the result of blunt force trauma to the head. He did not believe that the bruising on Ramirez's body represented the type of "classic" bruising seen in child abuse cases, but he agreed that Ramirez had suffered at least one impact injury to the head and the other bruising could possibly have been caused by child abuse. Dr. Goldstein admitted that 75 milliliters of blood in a toddler's skull is a significant amount of blood but he could not definitively say whether it would cause a fatal compression of the brain. He insisted, however, that such brain compression would have been seen on a CT scan or MRI and it was not. Dr. Goldstein believed Ramirez's hypothermia and the lab reports indicated Ramirez may have died as the result of sepsis followed by septic shock and cardiac arrest. Dr. Goldstein conceded that there could be disagreement regarding his interpretation of the objective medical evidence, stating: "That's the art of medicine."

Dr. Stern, who had listened to Dr. Goldstein's testimony, was recalled by the State in rebuttal. She disagreed with Dr. Goldstein's conclusions, pointing out that his medical training did not include the mechanics of how injuries are inflicted. Characterizing her conclusion as an objective medical finding, she adhered firmly to her opinion that Ramirez died from blunt force trauma to the head. She supported her finding by pointing out that she found both sub-dural and sub-arachnoid hemorrhage during the autopsy and she described for the jury photographs which depicted these injuries. Her finding of blunt force trauma was also supported by the finding of multiple impact sites on Ramirez's head. Citing standard American and British medical texts, she disagreed with Dr. Goldstein's conclusion that 75 milliliters of subdural hemorrhage would not necessarily cause a child to lose consciousness or otherwise become symptomatic. Some texts state that 35 milliliters is enough to cause an adult to become symptomatic. Much less would be required to cause a child to become symptomatic because their cranial vaults are much smaller than an adult. Dr. Stern did not find any evidence of sepsis. Dr. Goldstein relied on several laboratory findings to support his conclusion that Ramirez died as the result of sepsis: an increase in liver enzymes, a decrease in white blood count, an increase in clotting factors, a decrease in hemoglobin and hematocrit, and an increase in glucose. Dr. Stern, however believed these laboratory results were consistent with her conclusions because these laboratory results are consistent with a person who is in cardiogenic shock with a severe head injury. A recent study of 1,000 children who had suffered blunt force trauma showed that 77 percent of the children had elevated PT and PTT's on admission. More than half of the children had markedly elevated PT and PTT readings.

The evidence at trial showed that Ramirez died from anoxic brain injury. The cause of this anoxic brain injury was disputed. Dr. Goldstein concluded it was due to a progression of sepsis, septic shock and cardiac arrest while Dr. Stern found that the cause of Ramirez's death was blunt force trauma to the head. While Dr. Goldstein conceded that Ramirez had suffered at least one blow to his head, he dismissed the possibility of intentional trauma causing Ramirez's death because he believed the bruising on the child's body could be the result of a disease process or perhaps from minor falls as Ramirez learned to walk. Every other medical expert said that there was no medical condition or disease process which would account for the bruising seen on Ramirez's face, head, arms, buttocks, abdomen, and bottom of his foot. Likewise, none of the other medical experts believed that the bruising could be explained by Ramirez falling as he learned to walk. Contrary to Appellant's argument, Dr. Stern's conclusion regarding the cause of death is supported by objective medical findings. In finding Appellant guilty, the jury chose between competing views and interpretations of the objective medical findings. We conclude that the jury's determination that Ramirez died as the result of blunt force trauma is supported by factually sufficient evidence.

C. Culpable Mental State

Conceding that there is evidence he abused Ramirez, Appellant argues that the evidence is factually insufficient to prove that he acted with an intent to kill Ramirez or that he knew his conduct was reasonably certain to cause that result. Because capital murder is a result-of-conduct offense, the State must prove that the defendant possessed the requisite culpable mental state with respect to the result, namely, the death of the victim. See Medina v. State, 7 S.W.3d 633, 639 (Tex. Crim. App. 1999). A person acts intentionally, or with intent, with respect to a result of his conduct when it is his conscious objective or desire to cause the result. Tex. Pen. Code Ann. § 6.03(a) (Vernon 2003). A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Tex. Pen. Code Ann. § 6.03(b) (Vernon 2003). Intent is a fact question for the trier of fact. Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999); Wallace v. State, 52 S.W.3d 231, 234 (Tex. App.--El Paso 2001, no pet.). Proof of the requisite culpable mental state generally relies on circumstantial evidence. Gardner v. State, 736 S.W.2d 179, 182 (Tex. App.--Dallas 1987), aff'd, 780 S.W.2d 259 (Tex. Crim. App. 1989); Menchaca v. State, 901 S.W.2d 640, 652 (Tex. App.--El Paso 1995, pet. ref'd). Intent and knowledge can be inferred from the acts, words and conduct of the accused, including the surrounding circumstances. Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim. App. 1982); Menchaca, 901 S.W.2d at 652.

Approximately an hour before emergency services were summoned to the apartment, a neighbor heard a baby crying in the bathroom, the sound of a man making an effort, and something "really heavy" banging on the wall and falling to the floor of the shower. The evidence at trial showed that Ramirez had five separate impact sites on his head caused by a hard object striking his head or his head striking a hard object. One or more of these blows was sufficiently violent to tear the bridging veins which caused bleeding in the brain. Additionally, Ramirez also suffered a hemorrhage in the abdominal mesentery from blunt force trauma to the abdomen. Numerous other fresh bruises were found on his body. This evidence is factually sufficient to support a conclusion that Appellant intended to cause Ramirez's death by applying blunt force to his head or that he was reasonably certain his conduct would cause that result. Issue Number One is overruled.

JURY MISCONDUCT  

In Issue Number Two, Appellant contends that a new trial should have been granted due to jury misconduct. Citing Rule 21.3(f) of the Texas Rules of Appellate Procedure, Appellant asserts that the jury received other evidence after it retired to deliberate.

Rule 21.3(f) provides that in a criminal case, a defendant must be granted a new trial:

when, after retiring to deliberate, the jury has received other evidence; when a juror has talked with anyone about the case; or when a juror became so intoxicated that his or her vote was probably influenced as a result;

Tex. R. App. P. 21.3(f).

Appellant raised his jury misconduct complaint in a motion for new trial and supported it by affidavits of the jury foreperson, Benny McGehee, and juror Glenn Lane Stewart. McGehee stated that he had an understanding of anoxic brain injury as the result of his medical background, and he discussed his understanding with the jury. He also knew that blood could have been present in the brain on the 13th even if not apparent on the CT scan. Stewart said that McGehee's explanation of anoxic brain injury had an impact on three other jurors. At the hearing on the motion for new trial, Appellant introduced his motion for new trial and supporting affidavits over the State's objection based on Rule 606(b) of the Texas Rules of Evidence. Appellant additionally offered the live testimony of juror Erica Green who testified that she relied on information provided by McGehee during deliberations. The trial judge also overruled the State's objection to Green's testimony, but stated that if the State was correct in its contention about the impact of Rule 606(b), he would disregard the evidence. The court subsequently overruled the motion for new trial.

Granting or denying a motion for new trial is within the trial court's discretion. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001). An appellate court may not substitute its judgment for that of the trial court. Id. Instead, we must decide whether the trial court's decision was arbitrary or unreasonable. Id. As the sole judge of the credibility of testifying jurors, the trial court does not abuse its discretion in overruling a motion for new

trial when conflicting evidence exists as to jury misconduct. Id.

Rule 606(b) provides:

(b) Inquiry into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury's deliberations, or to the effect of anything on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the jury would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the jury was not qualified to serve.

Tex. R. Evid. 606(b).

In attempting to prove that the jury received "other evidence" for purposes of Rule 21.3(f), the defendant is limited by Rule 606(b) to juror testimony on "outside influence." See Garza v. State, 82 S.W.3d 791, 794 (Tex. App.--Corpus Christ 2002, no pet.); Hines v. State, 3 S.W.3d 618, 621 (Tex. App.--Texarkana 1999, pet. ref'd). Rule 606(b) does not define "outside influence" but civil case law, and more recently criminal case law, has established that outside influences must originate from sources other than the jury itself. See Garza, 82 S.W.3d at 794. Information gathered by a juror that is shared with the other jurors does not constitute outside influence, even if it is shared specifically to influence the other jurors' votes. Garza, 82 S.W.3d at 794; Hines, 3 S.W.3d at 623. Even a juror's injection of his own personal experiences, knowledge, or expertise will not be considered as an "outside influence" because it emanates from inside the jury. Franks v. State, 90 S.W.3d 771, 800 (Tex. App.--Fort Worth 2002, pet. ref'd).

Appellant acknowledges that the Texas Supreme Court and this Court have held in civil cases that "outside influence" as used in Rule 606(b) does not encompass outside influences imparted by a juror. See Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362 (Tex. 2000); Durbin v. Dal-Briar Corp., 871 S.W.2d 263 (Tex. App.--El Paso 1994, writ denied). But he urges a different interpretation in criminal cases in order to preserve the defendant's right of confrontation and his right to a fair and impartial trial. Further, he maintains that adhering to the interpretation of Rule 606(b) espoused in these cases causes an irreconcilable conflict with Rule 21.3(f).

Rule 606(b) of the Rules of Evidence, effective on March 1, 1998, permits jurors in criminal trials to testify about outside influences that affected the juror's decision or to rebut a claim of disqualification, whereas former Rule 606(b) of the Rules of Criminal Evidence allowed jurors to testify as to any matter relevant to the validity of the verdict. See Tex. R. Evid. 606(b); Tex. R. Crim. Evid. 606(b); In re S.P., 9 S.W.3d 304, 308 (Tex. App.--San Antonio 1999, no pet.); Sanders v. State, 1 S.W.3d 885, 887 (Tex. App.--Austin 1999, no pet.); Hines, 3 S.W.3d at 629-21. Rule 606(b) has significantly narrowed the matters that jurors can testify about in criminal cases. S.P., 9 S.W.3d at 308. Jurors in criminal cases are now limited, as they have always been in civil cases, to testifying about outside influences and to rebut a claim of disqualification. Id. Consequently, courts have looked to civil cases to determine what constitutes an outside influence. See id. ; Hines, at 622-23. Appellant's assertion that Rule 606(b) permits a motion for new trial founded upon an affidavit showing influence emanating from within the jury cuts against the public policy on which the rule is based. The rule against a juror impeaching his own verdict, codified in Rule 606(b), is a traditional rule designed to promote the confidentiality of jury deliberations. State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 202 n.12 (Tex. Crim. App. 2003), (citing McDonald v. Pless, 238 U.S. 264, 268, 35 S. Ct. 783, 785, 59 L. Ed. 1300 (1915)). Rule 606(b) is based on a public policy which chooses the lesser of two evils: the injury which may occur to the losing party if jury misconduct goes undiscovered versus the injury to the public if all verdicts could be attacked by endless inquiry into the jury's deliberative process and by harassment of individual jurors, thereby destroying the frankness and freedom necessary to a jury's deliberation. Id.

The Texas Supreme Court discussed these same policy considerations in Golden Eagle Archery, Inc. v. Jackson, while upholding the constitutionality of Rule 606(b). Consistent with the Court of Criminal Appeals' discussion in Poe, the Court held that public policy demands that jury deliberations be kept private, because: (1) jurors must be encouraged to candidly discuss the case during deliberations; (2) jurors must be protected from post-trial harassment and tampering; (3) disgruntled jurors must be denied an avenue for overturning the verdict; and (4) there is a need for finality in litigation. Golden Eagle Archery, 24 S.W.3d at 367. Based on these policy considerations, the Court found that Rule 606(b) does not violate federal due process or the right to a fair and impartial trial under the Texas Constitution. Id. at 374-75. Intermediate appellate courts have upheld the constitutionality of Rule 606(b) against similar challenges in the context of criminal cases. See Richardson v. State, 83 S.W.3d 332, 362 (Tex. App.--Corpus Christi 2002, pet. ref'd); Hicks v. State, 15 S.W.3d 626, 630 (Tex. App.--Houston [14th Dist.] 2000, pet. ref'd); Hines, 3 S.W.3d at 622; Sanders, 1 S.W.3d at 888. Two of these courts have rejected an argument that Rule 606(b) conflicts with Rule 21.3(f). See Hicks, 15 S.W.3d at 630; Hines, 3 S.W.3d at 621-22. Finding these authorities persuasive, we likewise reject Appellant's argument that Rule 606(b) conflicts with Rule 21.3(f).

The affidavits and live testimony indicate that an "outside influence" was not brought to bear upon the jury. Therefore, the State's objections based upon Rule 606(b) should have been sustained by the trial court. In the absence of any proof that the jury received other evidence, the trial court did not abuse its discretion by overruling the motion for new trial. Issue Number Two is overruled.

PROSECUTORIAL MISCONDUCT  

In Issue Number Three, Appellant asserts that the State failed to disclose exculpatory evidence in four different instances. Under the Due Process Clause of the Fourteenth Amendment, a prosecutor has an affirmative duty to turn over material, exculpatory evidence. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); Ex parte Kimes, 872 S.W.2d 700, 702 (Tex.Crim.App. 1993). Impeachment evidence is included within the scope of the term "exculpatory evidence." United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380, 87 L. Ed. 2d 481, 490 (1985). Evidence withheld by a prosecutor is "material" if there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been different. Bagley, 473 U.S. at 682, 105 S. Ct. at 3383; Wyatt v. State, 23 S.W.3d 18, 27 (Tex.Crim.App. 2000). A "reasonable probability" is a probability sufficient to undermine confidence in the outcome of the trial. Bagley, 473 U.S. at 682, 105 S. Ct. at 3383; Wyatt, 23 S.W.3d at 27. Thus, a due process violation occurs if a prosecutor: (1) fails to disclose evidence, (2) favorable to the accused, (3) which creates a reasonable probability of a different outcome. Wyatt, 23 S.W.3d at 27.

A. Medical Records

Appellant first complains that the State failed to disclose all of Ramirez's medical records prior to trial. More specifically, he alleges that the State did not provide him with Dr. Masnyk's notes or the MRI. Prior to trial, the court entered a general order allowing the inspection of all physical evidence in the possession of the State and providing for disclosure of any exculpatory evidence. Additionally, the trial court granted Appellant's motions to inspect all physical evidence and for disclosure of Brady material. The State filed the medical records in its possession with the trial court clerk, but during trial preparation, the prosecutor realized that the medical records did not contain Dr. Masnyk's notes. The prosecutor subsequently filed what she believed to be a complete set of medical records which included Dr. Masnyk's notes. But during trial, when Dr. Masnyk attempted to refresh his memory with his notes, Dr. Masnyk stated that his notes were not contained in State's Exhibit 3. Subsequently, the State subpoenaed the custodian of records from William Beaumont Hospital, Dorothy Estes, and a complete set of medical records was introduced without objection as State's Exhibit 3A. Estes made clear that the State had not previously been provided with a complete set of medical records. Evidence developed at the new trial hearing established that Appellant's trial attorneys subpoenaed Ramirez's medical records prior to trial. Dr. Goldstein, who testified on behalf of Appellant, stated that defense counsel provided him with a "full copy" of the medical records six weeks before trial. Likewise, one of Appellant's attorneys testified at the new trial hearing that the defense obtained all of the medical records well in advance of trial pursuant to subpoena.

The rule of Brady v. Maryland applies only to information known to the prosecution, but unknown to the defense. United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 2397, 49 L. Ed. 2d 342 (1976); see Jackson v. State, 552 S.W.2d 798, 804 (Tex.Crim.App. 1976)(holding that the prosecutor did not violate his duty to disclose favorable evidence where the evidence was known to the defense and in its possession pursuant to subpoena). Here, Appellant had the complete medical records in his possession and made use of them at trial. Under these facts, a Brady violation did not occur.

C. Floorplan of Apartment Complex

Appellant next asserts that the State's failure to disclose the floorplan of the apartment complex (State's Exhibit 97) inhibited his ability to cross-examine Appellant's neighbor, Rebecca Vasquez. During a hearing held outside the jury's presence, the trial court informed the prosecutor that he would not admit Sx97 because the State had not provided it to the defense prior to trial. Although made available to him during trial, Appellant did not introduce the exhibit or utilize it in his cross-examination of the State's witnesses, including Rebecca Vasquez, who testified after the existence of this exhibit was made known. Further, he did not request a continuance.

Significantly, the exhibit has not been made part of the appellate record. Therefore, Appellant has not shown that it, in fact, is exculpatory. Even assuming the floorplan is exculpatory, Appellant's Brady claim fails because it was made available to Appellant at trial in time for him to use it in his defense. See Little v. State, 991 S.W.2d 864, 866 (Tex.Crim.App. 1999); Todd v. State, 911 S.W.2d 807, 818 (Tex.App.--El Paso 1995, no pet.). Finally, Appellant has failed in his burden to establish materiality. See Lagrone v. State, 942 S.W.2d 602, 615 (Tex.Crim.App. 1997)(defendant bears the burden of showing materiality). An appellant can show that evidence withheld by a prosecutor is material only "if there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been different." Id. No such showing has been made.

C. Family Photographs

Appellant also argues that the State's failure to disclose a packet of family photographs gathered by Detective Joe Zimmerly constituted a Brady violation. Zimmerly collected the photos from the apartment because he believed they showed the relationship between Appellant, Ramirez, and the child's mother. The State did not make the photos available to the defense prior to trial, but provided them to the defense during Zimmerly's testimony. Defense counsel introduced two of the photographs, Defendant's Exhibits 1 and 2, during cross-examination of Zimmerly. These two photographs depicted Appellant holding Ramirez. At the new trial hearing, defense counsel initially testified that he would have investigated the other photographs to learn the identity of the people depicted in them, but then said, "I don't know what I would have done to be honest with you." Appellant does not explain the exculpatory value of the photographs nor has he shown their materiality. Consequently, his arguments are without merit.

D. Criminal History of State's Witnesses

Finally, Appellant contends that the State's failure to disclose the criminal history of Rebecca Vasquez, and any agreements it had with her, violated his right to due process. After the State concluded its direct examination of Vasquez but before defense counsel began cross-examination, the State informed counsel that Vasquez was on probation for assault. The prosecutors argued that it had not turned over the information because the order only required that it disclose felony convictions and crimes of moral turpitude, and assault is not a crime of moral turpitude. During a break, the prosecutors provided the file to defense counsel who determined that the conviction involved family violence which is a crime of moral turpitude. The defense then moved to strike Vasquez's testimony because the State had violated the court's order to provide this information. Additionally, Appellant moved for dismissal due to a Brady violation. Noting that defense counsel could impeach the witness with her prior conviction, the trial court denied both requests. Defense counsel impeached Vasquez with this conviction and also elicited that she was on felony probation for violation of a protective order. Vasquez agreed with defense counsel that if her probation was revoked, she was "looking at ten years in prison" and that the District Attorney's office had control over whether her probation was revoked. Defense counsel did not ask whether Vasquez had any agreements with the State in exchange for her testimony. At the new trial hearing, defense counsel testified that he accessed the public records system, which he called JIMS or CJIS, and found that Vasquez had been arraigned the week prior to trial "for another assault or some other misdemeanor." Appellant did not offer any evidence regarding the nature of this offense.

The record before us reflects that Appellant was provided with the evidence showing Vasquez's two prior convictions in time to use it effectively as impeachment evidence. Appellant chose not to ask Vasquez whether she had any agreements with the State or any perception that she would be treated favorably in exchange for her testimony, but the defense established ample facts from which it could argue that Vasquez had a bias to testify favorably for the State. Consequently, no Brady violation occurred as a result of the State's late disclosure of these convictions. See Little, 991 S.W.2d at 866.

Regarding the allegation that the State failed to disclose that Vasquez had been arraigned the week prior to trial on an unspecified misdemeanor, Appellant has not proven that there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been different. Because Appellant failed to establish materiality, his Brady claim is without merit. Issue Number Three is overruled.

Having overruled each of Appellant's issues on review, we affirm the judgment of the trial court.

August 25, 2004

RICHARD BARAJAS, Chief Justice

Before Panel No. 3

Barajas, C.J., McClure, and Chew, JJ.  

(Do Not Publish)